Ofsted inspector unfairly dismissed, for brushing water off a child’s head [TK1] 

The recent Court of Appeal judgment in Hewston v Ofsted serves as a reminder to employers of the importance of using policies to set clear workplace standards.

Hewston v Ofsted

In this case, an experienced Ofsted inspector with a clean disciplinary record, was dismissed after touching a pupil’s forehead and shoulder to remove rainwater.

Touching a pupil was not listed as an example of gross misconduct in the workplace policies, and there was no inappropriate motive behind the touching. The employer also failed to provide the Ofsted officer with several key documents during the disciplinary process (including the pupil complaint and the school’s investigation into it).

Unfair dismissal: Is it time to review your policies?

Upholding the Employment Appeal Tribunal’s finding of unfair dismissal, the Court of Appeal gave a useful restatement of the principles applying to conduct dismissals:

• Examples of gross misconduct should generally be listed in disciplinary policies. If something occurs that isn’t listed, an employer could still dismiss an employee for it.
• If an act isn’t listed, it’s critical to consider whether the employee could reasonably expect the employer to regard the act as serious misconduct considering the type of act and the circumstances. In this case, the Court decided that the officer couldn’t reasonably have expected the School to regard the act as serious misconduct, given the context.
• An employer can’t increase the seriousness of the act in order to justify dismissal, just because the employee failed to show contrition.
• Loss of trust and confidence and the risk of reputational harm are relevant to a decision to dismiss, but not if there is no evidence of misconduct.
• Employees should be provided with copies of all documents relevant to anything in dispute in the disciplinary process prior to any decision being reached.